An inalienable right to link?

Long-time Web initiates take as bedrock the right to link to any URL they please. Lawyers assume no such right. Numerous lawsuits have been filed, since the earliest days of the commercial Web, to protest linking; in each case one party's perceived right to link has collided with another's perceived right (not) to be linked to. No US court has ruled decisively on the many issues, some surprisingly subtle, that lurk behind what seems at first glance a simple question: is there a right to link? Late last month a federal judge issued an interim decision that at least touches on some of the issues.

These two quotes from late 1997 suggest the depth of the chasm across which the Webheads and the lawheads front each other.

Web inventor Tim Berners-Lee:

When you make a bookmark or a hypertext link, you should be able to make that link to absolutely any piece of information that can be accessed using networks.

New York attorney Emily Madoff:

There is no legal authority that says you are free to link to anywhere on someone else's Web site.

This dissonance arises because commercial aspirations have been layered onto a network designed for freely shared information. An action such as linking, natural in an environment of mutual trust, can take on new shades of meanings when employed by a competitor.

For students of the right-to-link question, the best Web starting point is Stefan Bechtold's Link Controversy Page. It's comprehensive and faithfully updated. Mark Sableman's 1999 paper Link Law discusses many of the important cases in detail.

The first closely watched linking dispute was joined in Scotland's Shetland Islands late in 1996. An upstart newspaper, the Shetland News, began linking to stories carried by its rival, the Shetland Times. While the links were simple and straightforward, their context and presentation delivered a subtle competitive insult to the larger newspaper. The Times sued, claiming that the links violated its copyright. To the astonishment of the Web-savvy, a judge quickly granted an injunction barring the News from linking. The two papers settled before any final decision could be handed down. At least one US legal expert believes that under US copyright law the Shetland case would not have proceeded as far as it did.

Two important linking disputes have involved Ticketmaster, which holds exclusive rights to sell a wide variety of tickets to entertainment events in the US. Ticketmaster forbids anyone to link to any of its site's interior pages, and now says so in fine print on its home page. In 1997 Ticketmaster sued Microsoft after the latter's Seattle Sidewalk site launched. Sidewalk featured many "deep links" to Ticketmaster pages where Sidewalk users could purchase tickets for particular events. The two sides settled in February 1999 (Microsoft agreed to link only to Ticketmaster's top page), again leaving no judicial precedent to guide future content publishers and linkers.

Ticketmaster is also a party to the linking tussle that currently embodies the best hope for judicial resolution. Last July the ticketing giant filed suit against Tickets.com, accusing the latter of plagiarism, providing false and misleading information, and illegally deep-linking to Ticketmaster's pages. Tickets.com filed a motion to dismiss all 10 charges in the lawsuit, and late last month a Los Angeles district judge ruled on that motion. The ruling is not the "all clear" signal for deep linking that some news outlets have reported. Rather it sends a mixed message.

Ticketmaster claimed that the Tickets.com deep links were in violation of the site "terms and conditions" posted on the home page. The judge ruled that this fine print, located as it was one or more clicks down the page, could not embody a binding contract, because visitors were not required to assent to it or even to read it. But the judge left the door open for Ticketmaster to present evidence that Tickets.com knew or should have known about those terms and conditions. Ticketmaster's breach-of-contract argument against deep linking is not dead yet.

In addition the judge allowed to proceed several other Ticketmaster claims that attack deep linking. In a later phase of the proceeding Ticketmaster will try to prove that Tickets.com's use of deep links embodied the unfair business practices of "passing off," "reverse passing-off," and false advertising. And the judge's ruling allowed Ticketmaster to advance its claim that the deep links deprived it of advertising revenue by bypassing its home page.

If the Ticketmaster-Tickets.com case goes to trial and judgement, we may at last get some judicial clarity on the question of what restrictions, if any, the commercial world may fairly soon impose on this most basic of Web techniques.